ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00016636
A Public Body
Andrew Cody, Solicitor
Peter Leonard, BL
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014
Date of Adjudication Hearing: 01/10/2019
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
In accordance with Section 41 of the Workplace Relations Act, 2015 and Schedule 2 of the Protected Disclosures Act 2014following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant contends that he was penalised by his employer for having made a protected disclosure.
Summary of Complainant’s Case:
The Complainant made a protected disclosure on 7th March 2016 to the Department of Justice. His case was upheld by an external review conducted by a retired Judge. His case for redress was adjudicated upon by the Workplace Relations Commission on 6th March 2018 and he was awarded €30,000. The respondent has appealed this to the Labour Court. His allegations of penalisation during the Workplace Relations Commission adjudication period (May 2017 to March 2018) are currently the subject of a review by an external law firm appointed by the Minister for Justice. The current complaint is in regard to penalisation suffered in the 6 months period since the Workplace Relations Commission adjudication, from 6th March 2018 to 5th September 2018.
It will be argued that the Complainant has been penalised by the Respondent in this period under the following headings:
A causal link will be established between the Complainant making a protected disclosure and the resulting acts of penalisation.
The protected disclosure made by the Complainant in 2016 related to his concerns about the use of unqualified staff to work in the Respondent’s catering section when qualified staff were available and the inefficient use and waste of taxpayers funds. Following an internal review, an external review was conducted by a retired Judge who found that the Respondent did not comply with its own standards as laid out in its policy in that it did not address with sufficient seriousness the concerns of the discloser, and further, penalised him for pursuing his complaints.
The Complainant subsequently received two apologies on 16th February 2017 for the distress caused to him and his family as a result of the manner in which his complaints were addressed by the Respondent. On 30th May 2017 during the Workplace Relations Commission hearing into the Complainant’s complaints of penalisation, the Respondent presented as part of their defence that “the disclosure/complaint made by the Complainant does not qualify as a protected disclosure and understood within the provisions of the Protected Disclosures Act 2014. It is further submitted that the Complainant was not subjected to any penalisation arising from the disclosure made by him on 7th March 2016”. On 11th June 2017 the Respondent wrote to the Complainant and the Workplace Relations Commission to inform them that the Respondent had decided to accept that the Complainant had made a protected disclosure on 7th March 2016 as defined by the 2014 Act.
On 31st October 2017 the Complainant wrote to the Respondent and stated that as the Respondent had not accepted the findings of the Judge’s report “I have now decided to accept (the Respondent’s) offer of an independent Governor to supervise my future employment”.
Following this, a Chief Officer (H) was assigned to perform the function of alternative management. This was despite the fact that he was on an opposite roster. The Respondent also indicated to the Complainant that “The Chief Officer will be accompanied by an administrative member of staff who will create a record of all meetings”. The Complainant had requested to be appointed to an alternative Governor and he never requested or accepted the appointment of a Chief Liaison Officer. It is submitted that the action of appointing a Liaison Chief Officer was a unique and unprecedented practice which highlighted his position to fellow staff as a whistleblower, made his working conditions onerous and removed the possibility of raising further issues anonymously. It is submitted that the illegal and improper appointment of a Liaison Officer was a deliberate attempt to isolate the discloser and limit his further interaction with Management. It is submitted that due to the unprecedented nature of the appointment of the Liaison Officer, there was profound confusion and difficulties surrounding the Complainant’s employment conditions, resulting in examples of penalisation. For example, decisions made by the Liaison Officer on the day would be later overruled by a Governor. This confused management structure allowed for authorised absence to become an unauthorised absence months later. The Complainant made numerous complaints about his appointment to a Chief Liaison Officer. On 8th May 2018 he emailed the Liaison Officer and stated that his belief that the assignment of a Liaison Officer had drawn attention to him and endangered his health and safety in the workplace. He stated that it was his belief that this was a deliberate tactic to penalise him for making a protected disclosure.
Correspondence then passed between the Complainant and the Director of Human Resources in which the Director advised inter alia that the appointment of a Liaison Chief Officer was a response to the Complainant’s request for an alternative Governor, that no underlying Policy or Regulation underpinned the assignment of a Liaison Officer, that the action was a “positive organisational response to a specific request” from the Complainant. It was also confirmed that the Chief Officers did not receive the specific training in relation to protected disclosures.
It is argued that it is only the Protected Disclosures Act 2014, in conjunction with the Respondent’s Protected Disclosure Policy that can define the specific correct and legal actions to be taken in response to making a protected disclosure. There is no reference in either to the appointment of a Liaison Chief Officer. It is submitted that this unprecedented and unique act was a deliberate attempt to isolate the discloser and limit his further interaction with Management.
On 8th March 2018 the WRC ruled that the Respondent had been made aware by An Garda Siochana of a removal of a security threat to the Complainant and his family since April 2015 and the failure to inform the Complainant was linked to his protected disclosure. The Complainant had requested An Garda Siochana report dated 3rd June 2015 in relation to his family’s covert surveillance which was first mentioned in the Internal Audit Report on 8th August 2016 as being witnessed on the Complainant’s personnel file but had never been issued to the Complainant. The Complainant made a complaint to the Data Commissioner regarding an incomplete response to a data access request. In investigating the matter, the Data Commissioner was informed by the Respondent that “As the report in question does not exist on the personnel file…there was no capability for the Directorate to provide a copy of a report not in its possession”. This response effectively ignored the evidence of the Internal Audit Unit who had reported on 8th August 2016 that they had actually witnessed the report dated 3rd June 2015 on the Complainant’s personnel file: “Audit located a report from AGS to (the Respondent) dated 03/06/2015 on the discloser’s file”.
Following representations to the Minister, in or around 13th June 2018, Audit were tasked to follow up on the matter of the missing report. On 2nd October 2018, the Complainant was advised that the report was located on his file and he was presented with it on 3rd October 2018. This is the same report which the Respondent informed the Data Commissioner some 3 months earlier did not exist. The complainant has lodged a complaint to the Garda Siochana Ombudsman Commission (GSOC) that An Garda Siochana colluded with the Respondent to penalise him for making a protected disclosure. Subsequently an Inspector was tasked with investigating wrongdoings in the Respondent’s employment and the Complainant is cooperating with that investigation.
The Complainant has been subject to a number of salary deductions most of which are the result of the lack of authority on the part of the Liaison Chief Officer, demonstrating the effective penalisation of the Complainant. Some examples are:
On 22nd May 2018 the Complainant attended at a Labour Court hearing as a witness in another case, and was shown on the roster duty sheet as being on business, as would be usual for staff rostered but required to attend court proceedings. The matter was in fact sent forward to the High Court and the Complainant expects to offer testimony when the case presents at the High Court. On 3rd October 2018, while the Complainant was being presented with the AGS report which was previously withheld from him, he was being written to by Governor B requiring him to provide information as to the reasons, circumstances and capacity for his attendance at the hearing the previous May. The correspondence contained a threat that failure to supply answers would result in the loss of a day’s pay. The Complainant replied that as he himself had not the authority to have himself shown as on business, this means that he had already already supplied evidence of his requirement to attend and further, that the requests were inappropriate and could be construed as witness intimidation. The Complainant indicated that his legal team may be required to take up the matter with the High Court. On 21st November the Complainant received an email from Governor G informing him that as he had not provided the supporting documentation requested, 11 hours pay was being deducted from him.
On 8th June 2018 the Complainant, who had been rostered to work 8am to 8pm, was granted permission by his Liaison Chief Officer to leave work early to attend to urgent financial matters which resulted in a minus payslip and the Respondent’s debit card being declined in a local shop when his wife was buying the family provisions. There were 3 hours granted by the Liaison Officer on the record for some 2 months, when Governor O required him to provide an explanation on the standard form. The Complainant stated that he had already explained his absence, however he provided again the explanation. On 8th August 2018 he received an email from Governor G informing him that he was being deducted 3 hours pay.
On 9th June 2018 he was rostered to work 8am to 8pm. He requested leave from the Liaison Officer due to the trauma caused to his wife by the events of the previous day when the bank card was declined on foot of the wages deductions. The Complainant’s leave record on 5th August 2018 shows evidence that he had been granted leave for 9th June and remained so until 5th August 2018. Some months after the date of leave, he was again required to provide an explanation on the standard form, and it is submitted that the requirement for him to explain events, which included going to a local priest for an advance of monies to assist in the family purchasing their monthly medicines was embarrassing and distressful.
On 21st May 2018 the Complainant was rostered to work 8am to 8pm. He was granted leave by the Liaison Officer and the record showed this for at least 3 months. At some point after that date he was again required to fill out the standard form of explanation (unsigned by a Governor). He again re-iterated that this explanation had already been furnished by him on a number of occasions. On 29th August 2018 he received an email from Governor G informing him that he was being deducted 11 hours pay.
On 21st June 2017 the Respondent wrote to the Workplace Relations Commission and conceded that they were now prepared to accept that the Complainant had made a protected disclosure on 7th March 2016 and as described on 7th February 2017 in the external review carried out by retired Judge E. The external reviewer had concluded that the Complainant had been treated unfairly, was isolated for making the disclosure and was penalised for pursuing his complaints. The WRC ruled on 8th March 2017 that there was a causal link to the Complainant’s treatment and his disclosure.
In September 2016, the Labour Court ruled in Monaghan v Area Cois Fharraige that the “but for” test was satisfied, in that the Complainant would not have been suspended from her employment but for the fact that she had made a protected disclosure. In this case, the Complainant would not have been appointed to a Liaison Officer but for his making a protected disclosure. The assignment of the Liaison Officer was in response to the Complainant’s continued pursuing of his complaints. The action of appointing the Liaison Chief Officer is unique to the Complainant and not prescribed under any rule, regulation, policy or procedure and there is no reference to such in the Respondent’s own protected disclosure policy. The action is described as a “positive organisational response” by the Respondent. However, the Complainant had constant complaint against the move. He had requested an alternative independent Governor, i.e. not a Governor subject of prior complaint or proven penalisation, with the required authority to address his issues. The fact that the final authority regarding his issues continued to remain with the Governors against whom the Complainant made complaints means that the appointment of a Liaison Officer offered no independence or protection. The essential net point is that the Complainant has been subjected to abuse and hostility, having his house egged and his locker daubed with paint, he has asked for the removal of the Liaison Officer arrangement and he has not been facilitated with this.
During the period in question, the Complainant had to attempt to address inter alia the following issues:
- Defend the Respondent’s Labour Court appeal
- Access the AGS report, withheld from him for over 3 years
- Address his removal from the payroll, leaving his family with no funds to provide for family life
- The Complainant’s own recovery and his family’s recovery from the distress caused by the Respondent.
It is submitted that in line with the European Court of Justice’s judgement in Von Coulson and Kamann v Land Nordrhein Westfalen, maximum compensation must be awarded as adequate for the damage sustained and to act as a real deterrent.
Summary of Respondent’s Case:
The Respondent made preliminary and supplemental submissions summarised as follows:
There is a wider context to this complaint which should be taken into account. The Complainant made a disclosure to the Department of Justice on 7th March 2016 in which his primary concern was that he believed that as he had been trained in catering, he should have been assigned to catering duties, which instead were assigned to other colleagues who had no such training. In line with the Respondent’s Protected Disclosures Policy, which states at Section 6 that personal complaints or grievances are not covered by the policy, the Respondent did not initially regard the disclosure as a protected disclosure. However, for the purposes of the WRC hearing in 2017, the Respondent accepted that the disclosure qualified as a protected disclosure. Nevertheless, the Respondent continued to strongly contest the case on the basis that the Complainant had not been penalised in any way for making this disclosure. The initial WRC hearing was adjourned for a number of months to allow the Complainant’s solicitor to make a further submission to the WRC. However, in the meantime, the Complainant submitted five more very serious complaints to the Department of Justice, arising out of his protected disclosure. The Respondent, in good faith, offered the Complainant the opportunity to add these complaints to the existing complaints which were before the WRC, whereby they could be independently adjudicated. However, the Complainant, through his solicitor refused and these additional complaints have been referred to solicitors M for investigation.
In relation to the current complaint, 5th September 2018, the main allegations appear to be related to the issues: Appointment of Liaison Officer, Deductions from salary and Security issues.
It is submitted that the appointment of a Liaison Officer arose directly out of a request made by the Complainant himself, that an independent governor be appointed to address his concerns. On 12th November 2017, the Complainant by email requested that he be allowed to report to an independent governor to over see his employment while he was “in dispute” with 3 (named) Governors. On 16th November 2017 the Complainant was replied to with confirmation that he had alleged that the 3 Governors’ behaviour towards him constituted bullying and harassment and that his complaint was being forwarded to the “Designated Person” to allow his complaint to be fully investigated. The Complainant was advised that in light of this, and his request that he be assigned an alternative manager, a Chief Officer on his side of the roster would be assigned to perform this function. The Complainant was told that any concerns he had in relation to his treatment by colleagues could be addressed to the Chief Officer and may also be raised with the Designated Person. It is clear from this that the response provided was well considered and was an attempt in good faith to put in place an arrangement that would address and help alleviate the Complainant’s concerns. As the Complainant himself had acknowledged, he was in dispute with the three senior Governors and accordingly, in a pragmatic and positive approach, it was decided to assign the next highest ranking manager, a Chief Officer on either shift as his Liaison Officer. The Complainant was also provided with the right to bring a representative of his own choice to any meetings with the Liaison Officer, thus providing additional reassurance to him. The Complainant’s contention that decisions taken by the Chief Officers were overruled by Governors is a clear misrepresentation of the true position as the Chief Officers were not appointed as an alternative management structure. The Complainant remained under the management supervision and there was never any ambiguity about this. From the contents of the complainant’s complaint form, it would appear that this arrangement did not work out from his point of view and he believes led to him feeling isolated. However, this was certainly not the intention, and was an attempt by management at the highest level to assist the Complainant who had made multiple complaints against senior management. Accordingly, the charge that this arrangement was put in place to cause him isolation is entirely wrong.
The Complainant contended that he was unfairly treated by reason of deduction of a day’s pay when he attended a Labour Court hearing in another case, and where a colleague (Mr T) was granted leave. It is submitted that the solicitor requested the attendance of Mr T for his attendance as witness, no such request was made in relation to the Complainant and he was not entitled to a paid absence to attend a hearing he attended of his own volition.
In relation to receiving a minus payslip in June 2018, it is submitted that he was deducted the sum of €1,947 due to being over the limit for paid sick leave.
In relation to absences in May and June 2018, evidence was given that the Liaison Officer gave permission to the Complainant on some occasions, however, the system requires insertion of a code denoting “annual leave pending” and as the Complainant did not provide explanations for his absences, and was minus annual leave entitlements, deductions were made in respect of those absences. In terms of the Complainant’s claim that income was deliberately withheld from him, it is the case that payments in respect of sick leave and annual leave can only be made in accordance with the procedures.
Security and location of AGS Report
Without prejudice to the fact that the issue of the surveillance incident is now the subject of a Labour Court appeal and accordingly it is not appropriate to re-open the issue, the following is submitted in relation to the AGS report on the matter. It is the case that the report had been mislaid and could not be produced. Accordingly, any response made to the Complainant that the report of 3rd June 2015 did not exist and could not be found were made in good faith and reflected the position as it existed at that point in time. It was only as a result of the Respondent’s Protected Disclosures Manager’s endeavours to obtain the report, which included obtaining a copy from AGS’ archives that the report was then furnished.
The legal test for establishing penalisation under the 2014 Act
Ultimately, to succeed in the herein claim it will be necessary for the Complainant to show a clear causal link between the disclosure he made on 7th March 2016 and the incidents of penalisation which have been identified by him for the purposes of this claim. It is strongly submitted that he has not been treated adversely by the Respondent. The legal test was set out by the Labour Court in Aidan & Henrietta McGrath Partnership v Monaghan PDD 2/2016 wherein it was stated that the penalisation claimed must have arisen as a “retaliatory act” in response to the disclosure which was made. It said:
“The Act is a new piece of legislation with limited case law, however the provisions regarding penalisation are broadly similar to those provided in the Safety Health and Welfare at Work Act 2005. As this Court pointed out in O’Neill v Toni and Guy Blackrock Limited  E.L.R. 21, it is clear from the language of Section 27 of the 2005 Act that in order to make out a complaint of penalisation it is necessary for a complainant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Section 27 (3) of the 2005 Act. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of the protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would have not suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment”.
Accordingly, for the reasons set out above it is submitted that the Complainant was not subject to any act of penalisation within the meaning of the Protected Disclosures Act 2014, as a result of making a protected disclosure on 7th March 2016.
Findings and Conclusions:
The Complainant made a protected disclosure on 7th March 2016 which was the subject of an Internal Review, an External Examiner Review and a previous Workplace Relations Adjudication Ref Adj-00005583, the latter which is under appeal to the Labour Court by the Respondent. This instant complaint concerns the allegation by the Complainant that he was penalised for having made the protected disclosure and such penalisation occurred during the period 6th March 2018 to 5th September 2018.
As has been recounted in the External Reviewer’s Report and in the Adjudication Decision, there is a long history to this case, accompanied by a litany of failures and errors made by the Respondent in relation to the Complainant. However, in considering the events surrounding this instant complaint, I must have regard only to the applicable law, consider whether the events cited constituted penalisation against the Complainant as a result of making the protected disclosure and make findings in relation to same.
The applicable law
Section 12 (1) of the Act provides:
“12 (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee for having made a protected disclosure”.
The Labour Court has found on a number of occasions that there is a test to be applied in considering whether the alleged detriment suffered can be linked to causal effect. In Determination PDD184 Fingal County Council and John O’Brien, the Court stated in relation to Section 12:
“It follows that a Complainant under the Act must demonstrate (i) that they made one or two protected disclosures; (ii) that they suffered a detriment and (iii) there is a causal connection between (i) and (ii)”
Section 3 (1) provides for the definition of penalisation:
“penalisation means any act or omission that affects a worker to the worker’s detriment, and in particular includes –
(a) suspension, lay-off or dismissal,
(b) demotion or loss of opportunity for promotion,
(c) transfer of duties, change of position of place of work, reduction in wages or change in working hours,
(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),
(e) unfair treatment,
(f) coercion, intimidation or harassment,
(g) discrimination, disadvantage or unfair treatment,
(h) injury, damage or loss, and
(i) threat of reprisal”.
In considering the Complainant’s allegations of penalisation, in relation to acts or omissions which affected him to his detriment, I note the core element of his complaint relates to the assignment of a Liaison Chief Officer. The complaints regarding deductions of salary, in some instances are alleged by the Complainant to be due to the lack of authority of the Liaison Officer and this will be considered also in the findings herein. The issue of the security report and the withholding of same has already been subject to an Adjudication decision and is the subject of further complaints to other statutory bodies, and I therefore consider it inappropriate to rule on that aspect of the complaint in this instant decision.
The Appointment of a Liaison Chief Officer
I note the circumstances surrounding the assignment of a Liaison Officer to the Complainant. Correspondence between the Complainant and the Respondent shows that on 31st October 2017 the Complainant wrote to the Respondent and stated “I have now decided to accept (the Respondent’s) offer of an independent Governor to supervise my future employment”. The Respondent duly replied on 15th November 2017 advising that as the Complainant had placed on record alleged bullying by 3 senior Governors, and in light of the fact of his request that he be assigned an alternative manager to whom he would report, that “a Chief Officer on your side of the roster will be assigned by the Governor today to perform this function”.
I note the evidence that the Liaison Officer assigned in the first instance was not on the same side of the roster of the Complainant. However, I note also that another Liaison Officer was appointed subsequently. I also note the evidence that the arrangement in particular with Chief Officer H appeared to be working out well for the first six months. Chief Officer H gave evidence at the hearing of being taken aback at the Complainant’s email dated 8th May 2018 in which he expressed his concerns about working under the circumstances of having been assigned a Liaison Chief Officer. I note the Director of Human Resources responded to the Complainant on 1st June 2018 clarifying that the assignment of a Liaison Chief Officer was on foot of the Complainant’s request for the appointment of an alternative Governor. That email also asked the Complainant to advise what alternative solution could be put in place “to assist you”. I note the Complainant’s evidence about isolation and the ill treatment he received in respect of locker painting and house daubing. However, no direct evidence was adduced regarding the perpetrators and I am unable to conclude that such actions are definitively connected to the Complainant making a protected disclosure or being assigned a Liaison Chief Officer. In further considering the allegation that the assignment of Liaison Officers constituted penalisation of the Complainant, I have taken into account the practical evidence given in the course of the hearing. Liaison Chief Officer H gave evidence in relation to the role and duties of Chief Officers. The chain of command is clear and the Chief Officer does not have the same authority as a Governor. When the Complainant, requested leave or time off at short notice, the Chief Officer would input a code into the system, and the approval authority lay with the Governor. I note the correspondence submitted in evidence from the Director General to the Public Accounts Committee in April 2018 which clearly states that the Complainant “is subject to the same attendance management processes as all other Officers working in the prison”.
There is a dearth of cases which can be drawn upon in relation to the Act, and the Labour Court has found in PDD 2/2016 Aidan & Henrietta McGrath Partnership v Monaghan that the Act is a fairly new piece of legislation. Citing the O’Neill v Toni & Guy case  E.L.R. 21 as it related to the Safety, Health & Welfare at Work Act 2005, and the causal link regarding penalisation stated:
“in order to make out a complaint of penalisation it is necessary for a complainant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Section 27 (3) of the 2005 Act. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act”.
In this instant case, I find that the assignment of a Liaison Chief Officer to the Complainant was designed to assist him and not penalise him and that in effect it was not a retaliatory action on the part of the Respondent against the Complainant. I therefore conclude that the appointment of Liaison Chief Officers did not constitute penalisation.
I find that the Complainant was mistaken in his belief that the Liaison Chief Officer had approved leave for him on the occasions cited in May and June 2018. It was established in correspondence from Governor G to the Complainant on 8th August 2018 that “the info booth will show annual leave deducted but in fact it is a request for annual leave to be sanctioned”. In that email the Complainant was notified that he was “minus 45 hours annual leave at this time”. The issue of absences on 8th and 9th June 2018 were also subject to the same rules that apply to all staff. While the Respondent could have demonstrated some modicum of sympathy for the Complainant in the situation where he had to attend to an urgent domestic matter, I find that it applied the rules that apply to all staff and I do not find a causal connection with the protected disclosure.
In accordance with Schedule 2 of the Protected Disclosures Act 2014, for the reasons outlined above, I find the Complainant’s complaint to be not well founded.
Dated: 4th December 2019
Workplace Relations Commission Adjudication Officer: Gaye Cunningham